of relator's youth, and the unfamilarity of his court appointed counsel with the relevant portions of the law of homicide. Thirdly, relator urges that his plea of guilty was the result of a coerced confession. And lastly, relator alleges that he was denied his right to counsel at the hearing before the juvenile court to certify him for trial as an adult. In its Answer, but not in its brief, the Commonwealth raised the issue that the relator has still failed to exhaust his state remedies.
I find that I have jurisdiction under the facts of this case. After a full plenary hearing and considerations of the well argued briefs of both the Commonwealth and counsel for the relator, I find for reasons stated hereafter, that relator is not entitled to the writ of habeas corpus and the petition is therefore dismissed.
After the arrest of relator's co-defendant, Isaiah Green, at 12:15 A.M., on July 27, 1957, relator, Edwin Walker, was arrested at 3:00 A.M., on July 27, 1957 (N.T., 52).
At the time of his arrest, Walker was fifteen years, eleven months of age (N.T., 148). He was awakened from a deep sleep at 3:00 A.M. by twelve or fourteen law enforcement officers and questioned as to the whereabouts of the alleged murder weapon. (H.C., 53).
The relator first lead the officers to a sewer where the weapon was supposedly hidden. During the course of the search for the weapon in the sewer, according to Walker's testimony, one officer told him that he should throw him down the sewer, but another officer assured the relator that no such threat would be carried out. (H.C., 54-55). Under the facts of this case, I find the relator was not apprehensive of any physical harm at this time. Relator then showed the police officers where the weapon was actually hidden, in a backyard. Newspaper reporters and photographers accompanied the police during the search for the weapon. At the direction of a police officer, relator was photographed by newspaper photographers indicating where the weapon was hidden. (H.C., 56).
Later that morning the relator was interrogated at police headquarters by several police officers. After 3:45 A.M., Walker was taken to City Hall, where he was questioned by five detectives. Walker signed the typewritten confession at 8:35 A. M., in the presence of his two co-defendants. (N.T., 140). Thus, for a period of approximately five hours during the middle of the night, Walker was questioned by five policemen.
During this period of questioning of Walker, no attorney or friendly adult was present. (H.C., 60). On Thursday, July 25, 1957, prior to relator's arrest, a police officer informed relator's older sister that relator was wanted for questioning. (H.C., 38). After relator's arrest and after he had given his confession, his sister was told on either Monday or Tuesday that there was no need to get a lawyer since the relator would be treated as a juvenile. (H.C., 40).
Four days after his arrest, during which time he had no family visitors, the relator had a hearing before a juvenile judge sitting as a committing magistrate, on July 30, 1957. A prima facie case of murder was made out and relator was certified to stand trial as an adult for murder. The next day, July 31, 1957, relator was indicted for murder by the Grand Jury and sent to County Prison. He was not allowed to be visited by his sister at County Prison, although she attempted to do so. (H.C., 41). Counsel was not appointed for the relator until twelve days later, August 12, 1957. Relator first conferred with appointed counsel on August 20, 1957. (H.C., 69).
During this conference between the relator and court appointed counsel, counsel advised the relator to plead guilty since there was testimony identifying him as a participant in the crime; but the confession was a primary factor in counsel's advice to the relator that he plead guilty. (H.C., 17-18).
The next contact between relator and his court-appointed attorneys was on September 4, 1957, when relator plead guilty to murder generally. (H.C., 103). This plea of guilty was unrecorded. (N.T., 45.) The relator was sentenced to a term of life imprisonment on September 5, 1957.
EXHAUSTION OF STATE REMEDIES
The Commonwealth has in its answer urged that the filing of a petition under the Post Conviction Hearing Act, supra, by the relator after he had filed the instant federal petition means the relator has failed to exhaust his state remedies. The Commonwealth relied upon United States ex rel. Davis v. Maroney, 400 F.2d 85, (1968), where the Court stated:
"It should be noted that, after the application for Federal habeas corpus, further collateral proceedings were initiated in the state trial court under the Post-Conviction Hearing Act. This statutory procedure became effective in Pennsylvania after the original State habeas corpus petition * * * [Citations omitted]; and the petitioner has not exhausted his remedies thereunder."
But recognizing that the exhaustion of state remedies doctrine is a matter of comity between state and federal courts and not a matter of jurisdictional power of the federal district courts, Fay v. Noia, 372 U.S. 391, 420, 83 S. Ct. 822, 839, 9 L. Ed. 2d 837 (1963), I used my discretion to accept jurisdiction and ordered a hearing in this matter. In a situation where the Commonwealth has requested a remand of a case from the Court of Appeals to this Court for further proceedings where the sole issue on appeal was whether the petitioner had exhausted his state remedies, it would appear unfair to force the petitioner to endure further delays while the courts refine the intricacies of the exhaustion doctrine. "For it is clear that there are sharp limits to the sacrifices men must make upon the altar of comity. * * *" United States ex rel. Lusterino v. Dros, 260 F. Supp. 13, 16 (S.D.N.Y., 1966.) I have thus accepted jurisdiction in this case, where a certificate of probable cause for appeal will be granted so that relator may pursue his substantive constitutional claims upon appeal if he so desires.
For me, the most troublesome issue in this case is whether under "all of the attendant circumstances" relator's confession "was obtained by coercion or improper inducement" and thus became an involuntary confession. Haynes v. State of Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963).
Appellant's confession was obtained and his guilty plea entered prior to the time of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and thus he does not have the benefit of those greater prohibitions against police interrogation since these latter cases have been held to be not retroactive. Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S. Ct. 1772, 1780, 16 L. Ed. 2d 882 (1966). In one of the major pre- Miranda decisions, Chief Justice Warren has noted:
"In all such cases [pertaining to the voluntariness or involuntariness of a confession], we are forced to resolve conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement." Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 1203, 3 L. Ed. 2d 1265 (1959).